(2) GINSBURG_POST-FORMAT FINAL (DO NOT DELETE) 5/6/2013 9:14 AM Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges Jane C. Ginsburg* INTRODUCTION This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents—almost all unpublished— in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.1 As the former Register of Copyrights Barbara Ringer put it: * This Study commenced during a Michael Sovern Fellowship at the American Academy in Rome and has continued through several stays there as a Visiting Scholar. I am very grateful to the Academy’s Directors, Prof. Carmela Franklin and her successor Prof. Christopher Celenza, to Assistant Librarian Denise Gavio, to Assistant Director for Operations Pina Pasquantonio, and to Executive Secretary Gianpaolo Battaglia. Much appreciation also goes to the staffs of the Vatican Secret Archives and of the Vatican Library, and to Dr. Paolo Vian, Director of its manuscript division. Special gratitude to Prof. Christopher Witcombe, whose earlier work on Papal privileges charted my initial path, and whose extraordinary generosity in sharing his notes from the Vatican Secret Archives further enriched this account. For assistance with translation of Latin documents, I am indebted to 2008–2009 Rome Prize winners Prof. Eric Bianchi and Prof. Patricia Larash, and to a team of Columbia Law School students (Ella Aiken ‘11, Matthew Birkhold ‘14, Jack Browning ‘13, Nicholas Flath ‘11, James Klugman ‘12, Katherine Mackey ‘14, Deborah Sohn ‘12, Denise Sohn ‘12, Johan Tatoy ‘13, and Michael Zaken ‘14). Thanks for comments and assistance to Prof. Robert Darnton, Prof. Hanoch Dagan, Dr. Dirk Imhof, Prof Evelyn Lincoln, Prof. Laura Moscati, Prof. Neil Netanel, Prof. Laurent Pfister, Prof. Lisa Pon, George Spera, Prof. Elissa Weaver, Prof. Steven Wilf, and to fellow ASVat researcher Dom. Paolo Fusar Imperatore (il mio angelo custode). The Study has also benefitted from the observations of participants in faculty seminars at Columbia Law School, at the University of Connecticut Law School, in Professor Lisa Pon’s seminar in the art history department at Southern Methodist University, at a seminar organized by Edwige Keller-Rahbé of the Faculté des lettres, sciences et art, Groupe renaissance et age classique, of l’Université de Lyon 2, and at a copyright history workshop organized by Professors Robert Brauneis and Tomàs Gomez-Arostegui at George Washington University Law School. 1. See, e.g., ELIZABETH ARMSTRONG, BEFORE COPYRIGHT: THE FRENCH BOOK-PRIVILEGE SYSTEM 1498–1526 (1990); JOHN FEATHER, A HISTORY OF BRITISH PUBLISHING (1988); LUCIEN FEBVRE & HENRI-JEAN MARTIN, L’APPARITION DU LIVRE 233–38, 338–43 (1971) (discussing privileges, but pertaining entirely to printer-booksellers, and discussing authors, including remuneration for submission of manuscript but not suggesting that authors received privileges); RUDOLF HIRSCH, PRINTING, SELLING AND READING 1450–1550, at 78–87 (1974); ANDREW PETTEGREE, THE BOOK IN 345 (2) GINSBURG_POST-FORMAT FINAL (DO NOT DELETE) 5/6/2013 9:14 AM 346 COLUMBIA JOURNAL OF LAW & THE ARTS [36:3 “The author was the forgotten figure in th[e] drama [of the origins of copyright], which was played out during the 16th and 17th centuries in England, France and other Western European countries . .”2 The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because the majority of these privileges were awarded to authors, and even where a printer received a privilege for a work of a living author, the petition increasingly asserted the author’s endorsement of the application. The predominance of authors might prompt the conclusion that the Papal privilege system more closely resembled modern copyright than printer- centered systems. That said, it would be inaccurate and anachronistic to claim that authorship supplied the basis for the grant of a Papal privilege. Nonetheless, a sufficient number of petitions and privileges invoke the author’s creativity that one may cautiously suggest that authorship afforded a ground for bestowing exclusive rights. The Study proceeds as follows: first, a description of the sources consulted and methodology employed; second, an account of the system of Papal printing privileges derived from the petitions for and grants of printing monopolies; third, an examination of the justifications for Papal printing monopolies and the inferences appropriately drawn regarding the role of authors in the Papal privilege system. A few disclaimers: based in primary sources, this Study does not attempt extensive examination of the broader social and economic setting in which the Papacy granted printing privileges. Nor does it delve deeply into the history of the Roman or Italian book trade. Italian book historians have provided the wider context,3 though they also acknowledge that little has been known about the Roman THE RENAISSANCE 163 (2010) (“The privilege was far more frequently granted to the printer or the publisher than to the author.”); 2 LEON VOET, THE GOLDEN COMPASSES: A HISTORY AND EVALUATION OF THE PRINTING AND PUBLISHING ACTIVITIES OF THE OFFICINA PLANTINIANA AT ANTWERP 262–63, 268 (1972) (noting that in Flanders and other Netherlandish Spanish provinces, most applicants for privileges were printers, not authors); Edward S. Rogers, Some Historical Matter Concerning Literary Property, 7 MICH. L. REV. 101, 102 (1908) (“The purpose of these privileges could not have been to encourage authorship. They were almost invariably given to printers and were apparently for the purpose of encouraging printing by eliminating competition, and thus making it more profitable.”). For a more recent and somewhat more nuanced position, see, for example, Joanna Kostylo, Commentary on Marcantonio Sabellico’s Privilege (1486), PRIMARY SOURCES ON COPYRIGHT (1450–1900) (2008) (L. Bently & M. Kretschmer eds.), http://copy.law.cam.ac.uk/cam/tools/request/showRecord?id= commentary_i_1486 (affirming nonetheless that “the practice of applying for privileges by authors and literary celebrities such as Sabellico was an exceptional arrangement far removed from the common practice”). 2. BARBARA RINGER, THE DEMONOLOGY OF COPYRIGHT 7–8 (1974). 3. For a very abbreviated list, see, for example, FRANCESCO BARBERI, PER UNA STORIA DEL LIBRO: PROFILI, NOTE, RICERCHE (1981); CLAUDIA DI FILIPPO BARESI, IL MESTIERE DI SCRIVERE: LAVORO INTELLETUALE E MERCATO LIBRARIO A VENEZIA NEL CINQUECENTO (1988); IL LIBRO ITALIANO DEL CINQUECENTO: PRODUZIONE E COMMERCIO (Paolo Veneziani ed., 1989); LA STAMPA IN ITALIA NEL CINQUECENTO: ATTI DEL CONVEGNO ROMA 17–21 OTTOBRE 1989 (Marco Santoro ed., 1992); 1 MARCO MENATO, ENNIO SANDAL & GIUSEPPINA ZAPPELLA, DIZIONARIO DEI TIPOGRAFI E DEGLI EDITORI ITALIANI: IL CINQUECENTO A–F (Bibliografica ed., 1998); ANGELA NUOVO, COMMERCIO LIBRARIO NELL’ITALIA DEL RINASCIMENTO (1998); MARCO SANTORO, STORIA DEL LIBRO ITALIANO: LIBRO E SOCIETÀ IN ITALIA DAL QUATTROCENTO AL NUOVO MILLENNIO (2d ed. 2008). (2) GINSBURG_POST-FORMAT FINAL (DO NOT DELETE) 5/6/2013 9:14 AM 2013] PROTO-PROPERTY IN LITERARY AND ARTISTIC WORKS 347 printing privileges.4 Finally, a word about the title, “Proto-Property in Literary and Artistic Works.” It is inspired in part by the French term for copyright, “propriété littéraire et artistique.” The French Code of Intellectual Property, expressing the predominant (at least Continental) view, emphasizes that copyright is an “exclusive incorporeal right of property” which authors enjoy in their works “from the sole fact of their creation.”5 While printing privileges, Papal or otherwise, established certain exclusive rights for a certain period, to call these rights “property” in the sense of modern “literary property” would be both anachronistic and overstated.6 The sixteenth-century sovereign granted exclusive rights as a “special grace”; rights did not arise from the act of creation, nor was the work’s creator necessarily the first beneficiary of any printing monopoly. That said, I believe that examination of the Papal privileges demonstrates, over the course of the sixteenth century, a growing sense of entitlement on the part of those who petitioned for privileges, and an increasing grounding of that entitlement in the creative act. Hence the prefix “Proto-,” suggesting a partly formed precursor to our current concepts. Nonetheless, I emphasize the “partly,” and caution against characterizing the system of Papal printing privileges simply as a kind of droit d’auteur avant la lettre. For example, as we will see, ensuring the integrity of text and images preoccupied both popes and petitioners, but often for reasons far from the core of contemporary droit moral, rooted as the sixteenth-century objective was in fidelity to Counter Reformation Catholic doctrine,7 rather than in respect for the personality of the author.8 4. See, e.g., ANGELA NUOVO & CHRISTIAN COPPENS, I GIOLITO E LA STAMPA NELL’ITALIA DEL XVI SECOLO 211 n.184 (2005) (stating there is no systematic study of Papal privileges after 1527); id. at 204 n.141 (“La difficoltà dello studio dei privilegi papali